Majak v Byrnes - [2022] NSWDC 222

District Court

New South Wales

Medium Neutral Citation: Majak v Byrnes & Anor [2022] NSWDC 222
Hearing dates: 16 June 2022
Date of orders: 23 June 2022
Decision date: 23 June 2022
Jurisdiction: Civil
Before: Russell SC DCJ
Decision:
(1)   Dismiss the plaintiff’s Notice of Motion filed on 24 March 2022.
(2)   Order the plaintiff to pay the costs of the defendants of and incidental to the Notice of Motion.
(3)   Direct that the Exhibits and MFIs be returned.

Catchwords:
PROCEDURE – application to set aside orders made after hearing – whether orders made irregularly, illegally or against good faith

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 36.15
Bankruptcy Act 1966 (Cth), s 263A

Cases Cited:
Bobolas v Waverley Council [2014] NSWCA 131
Choi v Commissioner of Police, New South Wales Police (No. 2) [2021] NSWCA 290
Coles v Burke (1987) 10 NSWLR 429
Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No. 2) [2009] NSWCA 387; (2009) 78 NSWLR 190
Kendell v Carnegie [2006] NSWCA 302; (2006) 68 NSWLR 193

Texts Cited:
Ritchie’s Uniform Civil Procedure NSW, (LexisNexis looseleaf service)

Category: Procedural rulings
Parties: Zofia Bozena Majak (Plaintiff) (Self-represented)
Russell Craig Byrnes trading as Byrnes Legal (First Defendant)
Alan Wesley Rose (Second Defendant)
Representation:
Counsel:
G Ng (First Defendant)
J-J Loofs SC and L James (Second Defendant)
Solicitors:
YPOL Lawyers (First Defendant)
Visa and Citizenship Lawyers (Second Defendant)

File Number(s): 2020/361633

Judgment

Introduction

This judgment concerns an application by the plaintiff Ms Zofia Majak to set aside a summary judgment in favour of the defendants. Ms Majak and the second defendant Mr Rose were in a de-facto relationship some years ago. Litigation between the former partners has taken place at every level of the court system. The first defendant Mr Byrnes is a solicitor who has represented Mr Rose in some of that litigation.
As a result of a judgment for costs against Ms Majak, obtained by Mr Rose in one of the many proceedings between them, a bankruptcy notice was issued against Ms Majak. Mr Byrnes was the solicitor who acted for Mr Rose in obtaining the issue of the bankruptcy notice.
By her Statement of Claim filed in this court Ms Majak sought the following relief:

“1.   A Declaration that neither of the defendants had any genuine basis for issuing a bankruptcy notice against the Plaintiff or that there were any proper facts that justified evoking the bankruptcy process.
2.   A Declaration that the bankruptcy notice was an abuse of process.
3.   A Declaration that by consequence of their conduct and involvement in relation to issuing a bankruptcy notice and opposing the application to stay the bankruptcy notice, the defendants utilised the bankruptcy process as an instrument of oppression against the Plaintiff, whereby she was greatly harmed and injured.
4.   A Declaration that the First Defendant acted dishonestly, swearing an Affidavit in which he denied having knowledge of facts ascertained by him prior to issuing the bankruptcy notice, which would have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Majak v Byrnes

Details

AGLC: Majak v Byrnes [2022] NSWDC 222
Case: [2022] NSWDC 222
Decision Date: 23 June 2022

CaseChat Overview and Summary

The case of Majak v Byrnes involved the plaintiff, Majak, lodging a Notice of Motion seeking to set aside orders made by the court after a hearing. The defendants, Byrnes, opposed the application, arguing that the orders were made correctly and that Majak had no valid grounds for the relief sought. The case was heard in the relevant court, which was not specified in the text.

The primary legal issue before the court was whether the orders made by the court were irregular, illegal, or made against good faith. Majak argued that the orders were flawed, while Byrnes contended that the orders were valid and should not be set aside. The court had to examine the circumstances under which the orders were made and assess whether there were any procedural or substantive errors.

The court found that the orders made were neither irregular, illegal, nor made against good faith. It concluded that the process followed in making the orders was appropriate and that Majak had failed to demonstrate any valid grounds for setting the orders aside. The court was satisfied that the orders were correctly made and dismissed Majak's application. In addition, the court ordered Majak to pay the costs of the defendants and directed that the exhibits and materials filed in the proceeding be returned.

Orders

Orders of the court

(1) Dismiss the plaintiff’s Notice of Motion filed on 24 March 2022.

(2) Order the plaintiff to pay the costs of the defendants of and incidental to the Notice of Motion.

(3) Direct that the Exhibits and MFIs be returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Majak v Byrnes & Anor [2022] NSWDC 222
Hearing dates:	16 June 2022
Date of orders:	23 June 2022
Decision date:	23 June 2022
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1) Dismiss the plaintiff’s Notice of Motion filed on 24 March 2022. (2) Order the plaintiff to pay the costs of the defendants of and incidental to the Notice of Motion. (3) Direct that the Exhibits and MFIs be returned.
Catchwords:	PROCEDURE – application to set aside orders made after hearing – whether orders made irregularly, illegally or against good faith
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 36.15 Bankruptcy Act 1966 (Cth), s 263A
Cases Cited:	Bobolas v Waverley Council [2014] NSWCA 131 Choi v Commissioner of Police, New South Wales Police (No. 2) [2021] NSWCA 290 Coles v Burke (1987) 10 NSWLR 429 Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No. 2) [2009] NSWCA 387; (2009) 78 NSWLR 190 Kendell v Carnegie [2006] NSWCA 302; (2006) 68 NSWLR 193
Texts Cited:	Ritchie’s Uniform Civil Procedure NSW, (LexisNexis looseleaf service)
Category:	Procedural rulings
Parties:	Zofia Bozena Majak (Plaintiff) (Self-represented) Russell Craig Byrnes trading as Byrnes Legal (First Defendant) Alan Wesley Rose (Second Defendant)
Representation:	Counsel: G Ng (First Defendant) J-J Loofs SC and L James (Second Defendant) Solicitors: YPOL Lawyers (First Defendant) Visa and Citizenship Lawyers (Second Defendant)
File Number(s):	2020/361633